Sunstein and Barnett at AALS

Some of you missed the Friday morning session at AALS about the Constitution in Exile, with Cass Sunstein and Randy Barnett. It was your loss – the session was phenomenal. It was the best session of any that I attended at the conference (including the blogging session, which was itself very good). Both Sunstein and Barnett are very good speakers, and the material they covered was very interesting.

What I’m posting here is a summary and highlights from my own notes on the session, followed by my more detailed session notes. I don’t claim to have gotten it all, but I think I got the important parts. Hopefully I won’t misrepresent anything in my hastily transcribed, condensed notes; if any of this looks misleading or wrong, please let me know.

Summary and Highlights

Sunstein made the interesting tactical decision to almost entirely avoid the stated program topic during his prepared remarks. (Note: I arrived a few minutes late, so it’s possible that he spent the first 3 minutes on Constitution-in-Exile and then moved on.) From the point where I arrived, Sunstein’s sole nod to the official program topic during his prepared remarks was a curious, wholly unexplained aside that “the idea of a Constitution in exile comes from Judge Ginsburg, and we can be sure others are taking the idea seriously.”

Instead of discussing the constitution in exile, Sunstein spent his prepared remarks focusing on the possibility of a Burkean minimalist approach – basically, a minimalist approach that would also place a high value on tradition. His comments were quite interesting. He said that he evaluated competing interpretive approaches based on consequentialist criteria, and that based on consequences, originalism was unacceptable. He noted that originalism would make sense in some possible worlds, but that this world is not one of them.

Barnett, not surprisingly, took Sunstein to task for skipping out on the stated program topic. Barnett effectively criticized Sunstein’s use of the term “fundamentalist” in his new book, but then went into a not-entirely-convincing side argument where he compared Sunstein’s liberal credentials to his own.

Barnett made the argument (which he has previously made on blog) that there is no Constitution in Exile movement, and said that the lost constitution is not the Republican Party’s ideals, but rather the constitutional provisions that no longer operate (e.g., 9th amendment, 2nd amendment, privileges and immunities, and so on). He closed with some thoughts on Sunstein’s newly-articulated Burkean minimalism discussion.

In the responses and then the Q and A, a number of interesting points came up. First, it was quite clear that Sunstein and Barnett explicitly agreed on many things. They agreed on the need to judge interpretive approaches by consequentialist criteria. Barnett stated that his approach is “identical at the meta level to Cass; we disagree about results.” They also agreed that Justice Scalia is not really an originalist – Sunstein alternatively labeled him a “fainthearted originalist” and a “perfectionist” while Barnett labeled him a judicial restraint person.

Disagreements came up as well. In particular, Sunstein pushed back on the constitution in exile meme that he had avoided in his opening remarks. He argued first that “there is a movement, but Randy isn’t part of it.” Who then comprises the movement? He mentioned unnamed persons in the Meese justice department; unnamed Republicans; “fundamentalists.” He asserted that this group comprises a “monolithic political movement” (which still, to me, sounded like a dodge).

However, when pressed, Sunstein came up with his most effective argument of the morning relating to the “is there really a movement?” question. Hammered by Barnett and by questioner David Bernstein, who focused on disagreements between conservative academics, Sunstein fired back: “Even though Brennan and Marshall disagreed on many things, it would be disingenuous to say that there was no movement on the Warren court.” From there, he pointed out that it is quite possible that a Constitution-in-Exile movement could exist even though many of its proponents disagreed on some of the details.

Other interesting notes: Barnett articulated the idea that originalism is a protection against rootless pragmatism. Barnett argued that “today’s conservatives are unreconstructed New Deal jurisprudes; progressives are reconstructed” (which drew a “What!?” from Sunstein). Sunstein elaborated on minimalism, arguing that there is no Thayerian on the court today; there is no Frankfurter. “The closest we have is Breyer, and he’s not very close.” Barnett asserted (not particularly convincingly, I thought) that “most conservative Republicans are perfectly satisfied with the New Deal jurisprudence.”

Expanded notes below the fold.

Sunstein

Choosing an interpretive approach:

1. Consequentialist criteria should be used

2. This results in the rejection of originalism on the basis of consequentialism. It fails because of its consequences.

3. An alternative approach is Burkean minimalism.

There are three varieties of conservative legal thought.

1. Originalism. Very important now; was not used in the Lochner era; occasionally used in Harlan’s and Frankfurter’s dissents on Warren court.

2. Perfectionism. Accepts Dworkin’s views on adding morality to law. E.g., effort to reinvigorate regulatory takings protection. No interest in history; for example, there is no history in Lucas. Similar approach seen in attacks on affirmative action – the arguments go to principle, not history.

Minimalism is narrow in scope, and case-by-case. Like the gang loitering cases; terrorist cases. Also, favor shallow not deep rulings.

Burkean minimalism looks to tradition. Not quite Sunsteinian.

Three assumptions that would make Burkeanism appealing:

1. Originalism may lead to bad results.

2. Traditions are generally good.

3. Distrust of judges’ theory-building ability.

Note – this is a non-Burkean set of criteria here. (e.g., a Burkean might see all these theories as too broad, must be case-by-case).

Using Dworkin’s approach, putting the documents in the best possible light.

If judges lack capacity, we might go to Burkeanism because of distrust of a priori reasoning.

There is a possible world in which it would be hard for Burkeans to win. In some worlds, it is conceivable that the case for original understanding would be extremely powerful.

e.g., if non-originalist judges are confused; and original understanding is strong and has good consequences.

This is not our world. Sex discrimination is allowed under an originalist approach. Brown v. Board not justified by original understanding. Constitution does not apply to the states. There is no defense against regulatory takings. Consultation with Senate required for treaties – treatymaking would be rendered unrecognizable.

There are a few things originalists can say in response. One is the fainthearted originalist (e.g., Scalia) – which looks similar in some ways to minimalists.

Burkean minimalism offers a distinct approach to constitutional law. It rejects width and depth, and adds insistence to importance of developing law in traditions. Distrust of moral claims in decisions.

No theory makes sense in every context.

Efforts to reclaim the past are frequently perfectionism. Sometimes they are honest, but even in that form they will fail the consequentialist criteria. Where we have traditions, and reason to distrust judges, there may be interest in Burkean minimalism.

Barnett

We’re discussing the constitution in exile meme. It was seen in the Sunstein and Rosen piece; also Radicals in Robes book.

Idea that Republican party platform should be implemented by use of constitution in exile. Sunstein also labels these approaches “fundamentalist” in his book.

Fundamentalism is not a sympathetic term. Chosen for pejorative impact. There’s no reason to make up a new word.

The book lists things that fundamentalists think. There are people who meet description, but many don’t. Barnett has never written about Roe v. Wade.

In fact, Barnett is probably more sympathetic to Roe than Sunstein. Sunstein links Roe’s privacy right to Dred Scott. Such a view would be killed if Sunstein were on the right.

Similarly, Barnett is more sympathetic to Lawrence. Barnett supported it in an article, wrote a brief. IFJ was on brief (Rosen said IFJ is part of the constitution in exile movement). Cass said Lawrence was too broad. Barnett is a much more vocal defender of Lawrence than Cass, but he’s apparently a constitution in exile person.

One can’t honestly say that Barnett’s idea of a lost constitution reflects the policy objectives of Republican party. Look at the medical marijuana case.

Many originalists disagree with Barnett; but many agree. The originalist intellectual movement is pretty diverse.

So, the term as used is misleading.

What’s different about the lost constitution versus constitution in exile?

Some clauses – 9th, 2nd, privileges, necessary or proper in n/p clause, commerce clause, public use – would you ever advise a client to depend on them? No. These provisions no longer operate.

That’s the lost constitution.

–

On Burkeanism, I basically agree.

The Constitution doesn’t proclaim a rule of interpretation; we’re not bound by Framers. We choose a theory today. Originalism makes the most sense today. We’re agreed on consequentialism, we have to choose our theory that way. Disagreed on consequences; and how you go about assessing consequences. It’s not “do you reach the right result in series of cases where we have results we like?” You must assess based on whether it creates a sound theory of individual rights.

Original meaning, as amended, protects rights better.

Replies:

Sunstein: There is a movement. Randy’s not part of it. I saw it in the Meese and Reagan justice department. It is monolithic. The idea was right there in the 80’s – relating to abortion, affirmative action, sex discrimination, and so on. Scalia and Thomas are part of that.

There is diversity within academics, but the book is about the political movement. There is a monolithic political movement, and it’s winning.

Barnett: Use of fundamentalist word unfortunate. Cass hasn’t used it in academic conferences, why is he using it in his book? There are academic originalists; there are Republicans in power, who have agendas. The true story is more interesting than a monolithic movement. There’s a real tension within movement – two strains of thought that Cass discusses. Minimalism versus originalism.

Scalia isn’t an originalist. He gave himself three outs in his 1988 article. Not the same commitment to originalism. Scalia isn’t an originalist, he’s a judicial restraint guy.

Q&A:

David Bernstein – does anyone really want to bring back pre-1937 constitution?

Sunstein – look to judge Ginsburg. Aside from that, let’s not get lost in details. Under Reagan, justice department thought that the Constitution went haywire between 1932 and 80’s.

There can be disagreement. There’s a movement, just like there was a movement on the Warren court, even though Brennan and Marshall disagreed on many things.

Kurt Lash, Loyola – would Burkean minimalist go along with New Deal?

Sunstein – probably not. 1937 to 1941 was Thayerian – the court’s view was “uphold it unless it’s crazy.” A Burkean would say the court blundered. What is he to do now? It’s a Burkean dilemma. Was the New Deal our French revolution? Maybe that’s what splits Thomas and Scalia. Can it be thrown out without a priori reasoning?

Barnett – most conservative Republicans are perfectly satisfied with New Deal jurisprudence. Bork defends New Deal. We can’t go back. Real story is that there’s a debate among legal academics that goes to the judiciary. Today’s conservatives are unreconstructed New Deal jurisprudes; progressives are reconstructed.

Sunstein – what? New Deal Thayerianism says to defer to Congress. The Rehnquist court struck down many acts of Congress. The closest thing to a Thayerian is Breyer, and he’s not close. There’s no Frankfurter. Why do you think that is? Do you think they should be invalidating more?

Peter Shane, Ohio State. Are people picking and choosing, e.g. 11th amendment. Anecdote from a student who interviewed with Justice department, the politicians were looking for real political power. The position is not restorative.

Barnett – there are people who do this. But this book professes to be about originalism. There are people who are originalists when convenient. Sunstein’s book isn’t wrong, it’s misleading. Identifies political movement with originalism; that’s inaccurate.

Mike [missed last name] at GW: Politicians borrow from both libertarians and restraint people when needed. Rootless pragmatism.

Barnett – originalism is a way of critiquing people who do that.

Sunstein – the political movement has more integrity and structure than that. The word fundamentalism captures the existing structure.

Larry Solum: Cass says that theories must be based on consequences. Randy proposes a theory of constitutional legitimacy, similar, hinges on consequences.

How to resist slippery slope to case-by-case decisions? Cass, how to resist rule utilitarianism? Randy, how to resist judges deciding cases unnecessarily.

Sunstein – there are attacks on rule utilitarianism, but don’t overstate. Rule utilitarianism may be contradictory, but there are domains where you want things very clear. (e.g., bankruptcy). Decision costs don’t clearly favor originalism. There’s no slippage from minimalism to case-by-case decisions. Minimalism does not ask judge to decide “is this bad?” Narrow and shallow. Well suited at systemic level. Not a rule, but has similar justification.

Barnett: Identical at the meta level to Cass’s. We disagree about results. We’re not literal utilitarians, though we’re consequentialists. Cass thinks minimal analysis is best way to get results overall. Description is different from practice.

Two kinds of slippage. First, the results in particular cases. The other, is that Cass is a minimalist except when he’s not. There are exceptions. I had a hard time figuring out minimalism. One can’t independently determine a minimalist outcome ex ante except by asking Cass Sunstein.

So, it’s hard to implement. My approach is consequentialist. It locks in the good constitution. It subjects lawmakers to law themselves. Lawmakers can’t change the law. The meaning of written constitution must remain the same until properly changed.

Mark Graber, Maryland. What does Burke have to do with this? Different social conditions. This is ordinary politics, not the French revolution.

Question from [didn’t get name] – when we look to original intent, the Framers. What level of generality. i.e., how do we discuss the Bank question?

Barnett – original intent has long been abandoned, in favor of original public meaning. We take it at the level of generality as understood. We take what they did as a public enactment, and we apply it. I don’t agree with all facts you’ve stated on Bank.